A holographic will, also known as a handwritten will, is an unattested will written in the testatorís own handwriting. The laws regarding holographic wills vary substantially from state to state. Some states require the entire contents of a holographic will to be in the testatorís own handwriting while other states require only the material provisions, date, and signature to be in the testatorís handwriting. In some states, a holographic will is valid even if it is not properly witnessed, while some states recognize a holographic will as valid only if it is signed in the presence of the required number of witnesses.
The testator must also have possessed the testamentary capacity to make a will at the time it was executed. In approximately half of all U.S. states, holographic wills are invalid and unenforceable, regardless of whether they are attested.
Some states that do not recognize holographic wills nevertheless allow a holographic will to be admitted for probate if it was executed while the testator was a resident of another state and the will was valid in that state.
Because a holographic will may be deemed invalid after the testatorís death for a variety of reasons, a holographic will should only be used if you are in a situation in which you cannot make a formal will which complies with all the statutory requirements of your state. Holographic wills should be reserved for emergencies. For example, if you are trapped on the side of a mountain and believe you will not be rescued, you may want to make a holographic will. Other situations when a holographic will may be the only option include when you are being rushed into emergency surgery or if you are facing imminent death. If you have any means to execute a standard will and have it properly witnessed and notarized, that is always preferable to making a holographic will. If you die without a will, your estate will be distributed to your legal heirs according to the intestate succession laws of your state.While a holographic will may seem like a cheap alternative to making a formal will, in fact, this type of will may result in your estate being distributed to your legal heirs rather than your desired beneficiaries if your will is declared invalid. A holographic will is much more likely to be the subject of a will contest. Probate litigation could reduce the size of your estate due to legal fees resulting in your beneficiaries receiving a smaller inheritance. It can also delay the distribution of your estate, which can be a serious problem if your spouse or children have no other means of financial support.If you are considering making a holographic will for any reason, you should consult a licensed estate planning attorney. Research the laws of your state to ensure you understand the requirements for making a valid holographic will. If you make a holographic will in an emergency, you should take steps to execute a formal, properly executed will as soon as possible thereafter.
A Holographic Will May Result in Litigation
When a holographic will is admitted for probate, the probate court may require proof that the handwriting in the will is that of the testator. Another problem that arises with holographic wills is they are poorly drafted because they typically do not contain the boilerplate terms contained in a will drafted by an attorney. Therefore, holographic wills are usually incomplete or fail to address how all of the testatorís property should be distributed. Holographic wills are also often ambiguous or unclear, leading to will disputes among the heirs about the testator's intentions. See will and trust disputes.